A Federal Court decision that a traditional landowner did not have the legal authority to challenge the Kimberley Land Council is “questionable”, according to former Federal Court judge Murray Wilcox QC, sparking a new debate around native title.

Aboriginal law boss Joseph Roe had claimed the Council acted without authority when it signed a heads of agreement with the state government and Woodside last year. The agreement offered in-principle support for Woodside and its joint-venture partners to establish an LNG precinct at James Price Point, 60km north of Broome.

Roe, who has sought leave to appeal the decision, is one of two registered applicants in the Goolarabooloo and Jabirr Jabirr native title claim, which was lodged over the land at James Price Point in 1998. Cyril Shaw, the other joint applicant in the native title claim, decided not to support Roe in his legal challenge against the Council.

Under the Native Title Act the registered applicants in a native title claim act on behalf of the members of the claim group. The Council, which is the recognised negotiating body for the Kimberley region under the Native Title Act, had originally helped Roe and the Goolarabooloo and Jabirr Jabirr people to lodge the native title claim

In August, Justice John Gilmour handed down a decision in Perth that Roe had no legal authority to challenge the Council because he could not act alone. The decision involved an interpretation of the Native Title Act and the meaning of the word ‘applicant’.

“Mr Shaw supported Joe and then he didn’t, so Joe had to stand alone,” Wilcox told student publication 3rd Degree. “Justice Gilmour held that there are two applicants, so he couldn’t bring about the claim on his own.”

Wilcox, who has been at the helm of several native title cases, said there could be “scores of applicants” in a native title claim and that it would be unlikely that each individual applicant would support a motion.

“The question must be whether parliament intended, in using the word applicant, that each and every person who had joined in a native title claim had to be a party to an application to the Court in respect of the conduct of that claim. If it were so, one of the applicants could subvert the claim and the others would be powerless to do anything about it. To that extent, the decision operates as a precedent, an unfortunate one in my opinion,” he said.

The meeting at the centre of Roe’s legal fight occurred in April 2009, when the Council sought approval from traditional landowners to enter into a heads of agreement. But there are allegations not everyone knew what would take place at that meeting.

Wilcox says many Goolarabooloo and Jabirr Jabirr people did not attend because they didn’t realise a vote on whether to offer in-principle support to the gas project would take place.

“The meeting was very odd. The notice given for the meeting was an update on negotiations,” said Wilcox. People from the remote Kimberley and areas outside James Price Point, many who already supported the gas project, participated in the vote at the meeting, he said.

Wilcox says Roe “was so disgusted he walked out of the meeting”.

In an episode of ABC’s Four Corners program earlier this year, Council CEO Wayne Bergmann said: “There are a number of traditional owners who voted against it and there were a number of traditional owners who abstained. But it was the decision of the group to move forward.”

Central to Roe’s claim is that the Goolarabooloo and Jabirr Jabirr people, many of whom never took part in the vote, did not genuinely consent to the agreement. Frank Parriman, a Jabirr Jabirr person who works for the Council and supports the gas project, did not return calls by deadline.

But Roe’s appeal against the Federal Court decision is now in jeopardy. Days after the decision was handed down the Goolarabooloo and Jabirr Jabirr claim group met to discuss replacing Roe and Shaw as the registered applicants in their claim.

Shaw, no longer wanting to be involved with the claim, prompted the meeting, which resulted in six new proposed applicants. An application to change the applicants was filed with the Federal Court and a hearing was held on October 6. At this hearing Roe’s representative told the Court he had tried to get copies of material relevant to the case from the Council but they had denied him access to it.

Justice Gilmour issued a subpoena requiring all material relevant to the case to be presented at a hearing scheduled for three days, beginning on October 14.

Glenn Moore, who is president of the Ecological, Social Justice Aboriginal party (ESJAP), has lived in the Kimberley and said that the “majority” of people in the region are opposed to the gas project: “It’s wild untouched country and very unnecessary considering all the other sustainable options that are open.”

He says the ESJAP is coordinating a forum on October 28 in Fremantle to voice different opinions on the proposed Browse basin development. Bergmann and traditional landowners including Roe have been asked to attend.

Peter Fray

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